Irrigation & Indus. Development Corp. v. Indag S. A.

• Decision Date: 16 October 1975
• Parties: , 337 N.E.2d 749 IRRIGATION & INDUSTRIAL DEVELOPMENT CORPORATION, Appellant, v. INDAG S.A., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 296

375 N.Y.S.2d 296

37 N.Y.2d 522, 337 N.E.2d 749

IRRIGATION & INDUSTRIAL DEVELOPMENT CORPORATION, Appellant, v. INDAG S.A., Respondent.

Court of Appeals of New York.

Oct. 16, 1975.

Richard L. Bond and Stephen B. Camhi, New York City, for appellant.

Daniel V. Duff, Jr., and Richard K. Ellingboe, New York City, for respondent.

JASEN, Judge.

In this action for damages for breach of contract, for a declaration that certain bills of exchange executed by plaintiff in favor of defendant are void and invalid, and for an order canceling and requiring return of these bills of exchange, Special Term denied defendant's motion to dismiss on the grounds of lack of jurisdiction and Forum non conveniens. The Appellate Division, however, by a divided court, reversed and granted the motion, holding that Special Term's failure to dismiss the action on the ground of Forum non conveniens was an 'improvident exercise of discretion'.

Defendant, a Swiss corporation whose only office is located in Lausanne, Switzerland, is a manufacturer and distributor of irrigation equipment in Europe and Africa. On occasion it has acted as a distributor of such equipment manufactured by plaintiff, a New York corporation. This action focuses on a March, 1971 agreement designed to recapitalize defendant in order to remedy its serious financial difficulties. Although others were parties to that agreement, it is sufficient for our purposes to note that plaintiff agreed to take a minority stock position in defendant, to take over defendant's stock in two Spanish subsidiaries, and to draw five bills of exchange against itself to defendant's order. The agreement also dealt with future use of certain manufacturing and sales licenses, purchases from the Spanish companies acquired by plaintiff, and the like.

In March, 1972 defendant presented the first bill of exchange to plaintiff for payme in accordance with its terms; plaintiff, however, refused payment. Two months later defendant served and filed a motion for summary judgment in lieu of complaint on an instrument for the payment of money only, pursuant to CPLR 3213. Plaintiff opposed summary judgment contending that it would have defenses and counterclaims arising out of alleged breaches of the 1971 agreement. Special Term, finding certain triable issues of fact, denied the motion and directed defendant to serve a formal complaint. Defendant, rather than serving a complaint, attempted to serve a notice of voluntary discontinuance pursuant to CPLR 3217 (sub. (a)). ^* Two days later plaintiff commenced this action.

On this appeal, plaintiff challenges the dismissal, contending that the Appellate Division abused its discretion and that defendant is estopped by its prior conduct from asserting under CPLR 327 that the action should be heard in another forum.

This court will not ordinarily interfere with the Appellate Division's exercise of discretion in granting or denying a motion to dismiss on the ground of Forum non conveniens unless there has been an abuse of discretion as a matter of law or unless the Appellate Division, in exercising that discretion, has failed to take into account all the various factors entitled to consideration. (Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 361, 328 N.Y.S.2d 398, 402--403, 278 N.E.2d 619, 621--622; Varkonyi v. S. A. Empresa De Viacao Airea Rio Grandense (Varig), 22 N.Y.2d 333, 337, 292 N.Y.S.2d 670, 672, 239 N.E.2d 542, 543, mots. for rearg. den. 22 N.Y.2d 972, 973, 295 N.Y.S.2d 1032, 242 N.E.2d 498.)

Plaintiff's position on this appeal is that the Appellate Division abused its discretion as a matter of law by not giving controlling weight to the fact that defendant had earlier attempted to use the New York courts to recover on plaintiff's bill of exchange. In making that argument, we think that plaintiff would give too much weight...